The right to be freed on bail is inextricably intertwined with one of the founding principles of our legal system: the presumption of innocence unless and until a court has determined guilt. In short, an accused person should be treated like an innocent person, and innocent people are not held in custody.
Bail used to involve the posting of money, which would be forfeited in the event of non-appearance, but these days it is assumed as a right in all cases where the charge does not carry a term of imprisonment and in many cases where it does, as long as the judge feels that there is no compelling reason that it should not be granted.
Few New Zealanders would consider that to be an unreasonable state of affairs in a civilised country. The United States provides a stark illustration of the perils of the alternative: amounts from tens of thousands to millions are demanded; bail bondsmen act as insurers charging usurious rates on loans for a few weeks and send bounty hunters with guns to track down people who have skipped; and jails bulge with poor, predominantly black, defendants who cannot hope to buy their way into such a system.
Such institutionalised discrimination is repugnant to our way of life. But it is hard not to feel that something has gone terribly wrong with the way bail law is being administered here.
The case of Auckland teenager Christie Marceau, who was allegedly stabbed to death by Akshay Chand, who was on bail on a charge of kidnapping her, has become a lightning rod for public concern and anguish.
Another example, and nearly as distressing, was the anguish endured by the parents of teenager Augustine Borrell, stabbed outside a Herne Bay party in 2007. His alleged killer was bailed to within a kilometre of their home, and across the road from the school their youngest child went to every day.
It seems plain that judges' decision-making too often places the rights of the accused to be at liberty while awaiting the outcome of legal process far ahead of the rights of crime victims (not to mention the rest of society). Laws that protect us from arbitrary detention were not designed to shield people charged with one serious crime who then commit another. Nor should the bereaved have to daily be confronted with the sight of their tormentors. The presumption of innocence is not perennial and it does provide a "get out of jail free" card.
To her credit, Justice Minister Judith Collins is promising that a Bail Amendment Bill will be introduced into Parliament by the middle of this year, to give effect to law changes that National proposed during last year's election campaign. These include reversing the burden of proof in deliberations about granting bail to people accused of serious offences, so that they will have to prove why they should have bail, rather than requiring the police to prove why they should not.
Such legislative changes, assuming they pass this year, will arrive not a moment too soon. But in the meantime it is the duty of the judiciary to pay some attention to public opinion as they exercise their discretion to grant bail. They should not wait for a law change to act with much more circumspection than they appear to be doing.
And those members of the criminal bar who blandly say that the system works well, except for a few hiccups, do their profession no credit. The law as it stands requires that bail be denied if granting it poses any risk to the public; where there is a prima facie case that a violent crime has been committed, judges need to think carefully before letting someone accused of a serious violent crime roam free.